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This raises a number of questions, including, what if acts are sexual and they hurt both sexes? Or, to rephrase, what does MacKinnon's theory have to say about the bisexual and equal- opportunity harassers? The response is that these "loopholes" are generated by a sort of legal formalism that fails to comprehend how unwanted sexual aggression is a form of masculine dominance.
Harassment is about power, not desire. The law "typically conceives that something happens because of sex when it happens to one sex but not the other."457 This leads to "head counting" in which courts ask whether a particular harasser victimized only members of one sex, and it is what gives rise to the theoretical possibility of the "bisexual defense."458 But as courts have recognized in other contexts, "both sexes can be discriminated against based on sex at the same time from a single practice."459 Imagine, for example, a racist supervisor who harasses both black and white employees using the same racial epithet.46 Should only the black employees have a claim? MacKinnon concluded that although "head counting can provide a quick topography of the terrain, it has proved too blunt to distinguish treatment whose meaning is based on gender from treatment that has other social hermeneutics, especially when only two individuals are involved."461
Gender here is about masculinity and femininity, not men and women. Women can wield masculine power just as men can be feminized. Thus, in her Oncale brief, MacKinnon also made an argument about the gendered power dynamics at play: that "[m]ale rape-whether the victim is male or female-is an act of male
disposes of nothing" while acknowledging that the sexual orientations of the perpetrator and victim "both can be relevant (if sometimes only minimally)." Id. at 24. For another interpretation of MacKinnon's argument, see JANET HALLEY, SPLIT DECISIONS: HOW AND wHY To TAKE A BREAK FROM FEMINISM 293-94 (2006).
457. MACKINNON, supra note 452, at 107.
458. Id. at 107-08.
459. Brief for Nat'l Org. on Male Sexual Victimization, Inc. et al., supra note 456, at 22 n.6.
The Supreme Court struck down, on equal protection grounds, a law that required a widower seeking to collect benefits from his wife's work-related death to prove he was dependent on his deceased wife, but presumed that widows were dependent on their deceased husbands. Id.
(citing Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980)). Such a law discriminates against both widowers who may be denied benefits and working women who cannot be sure their husbands will be able to collect benefits upon their deaths. Wengler, 446 U.S. at 146.
460. See Jennifer A. Drobac, The Oncale Opinion: A Pansexual Response, 30 MCGEORGE L. REV. 1269, 1279 (1999) ("Arguably, a perpetrator who calls all workers, regardless of race, 'niggers' discriminates, and is liable to any person so called.").
461. MACKINNON, supra note 448, at 108.
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dominance, marking such acts as obviously gender-based and making access to sex equality rights for Joseph Oncale indisputable."62 Male here means masculine, not by men. This is the crux of the argument- that sexual harassment is male dominance, not necessarily dominance by men. The key is the act, not the actor. The argument parallels that made by feminists in the 1970s about rape: that it should not be understood as a psychological phenomenon, that is, a deviant desire for sexual gratification, but rather, as a social phenomenon, that is, a way for the rapist to express masculine dominance and aggression.463 Whatever the motive, the effect of rape is to maintain male supremacy, just as lynching maintained white supremacy.M Sexual harassment is not stripped of its meaning as an act of male supremacy when the harassers are of the same sex, just as lynching would not escape its historical connotation as a technology of racial supremacy if it were done by and to people of the same race. Rather than examining the harasser's motivations, from this perspective, courts ought to be focusing on the harm to the victim.
This theory raises other questions: What does it mean for an act to be "sexual"? Do the "simulated" sexual acts referred to so often in the case law qualify?45 What about humor and "horseplay"? Asking a coworker out on a date? More importantly, is sexuality always domination? Should the law treat all sexual expression in the workplace as harassment, even if welcomed?"' Professor Katherine Franke has referred to the sexual domination theory as "anti-sex."467 She argues that it "conflates sex and sexism."468 The antisex position resonates with cultural conservatives and those who view all sex in the workplace as a threat to efficiency.469 However, very few legal theorists argue that all sexual expression or conduct in the workplace is because of sex.470 Indeed, adherents of the sexual domination theory
462. Brief for Nat'l Org. on Male Sexual Victimization, Inc. et al., supra note 456, at 4.
463. E.g., SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 15, 105 (1975).
464. Id. at 254-55.
465. See supra notes 132-37 and accompanying text.
466. See Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 860 (1991) (arguing for a rule prohibiting even consensual relationships).
467. Franke, supra note 22, at 704.
468. Id. at 705; see also ZYLAN, supra note 7, at 176-79.
469. See Schultz, supra note 445, at 2063-64.
470. But see Estrich, supra note 466, at 820 (arguing that the problem with sexual harassment is that it is "sexual," and so "[n]ot only are men exercising power over women, but they are operating in a realm which is still judged according to a gender double standard, itself a
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of harassment argue that their brand of feminism is not a blanket condemnation of workplace sexuality.41 Their arguments respond to the charge that radical feminism is antisex or eliminates the possibility of women's sexual agency, attributing a false consciousness to any woman who chooses sex.472 The appropriate question, then, is how to judge whether sexual expression in the workplace is unwelcome.473
From this perspective, the judicial focus on desire has obscured how sexual harassment is a mode of male domination in same-sex cases. For example, in Smith v. Hy-Vee, the court was so preoccupied with the search for desire and its defense of the alleged harasser's heterosexual status that it failed to consider the social meaning of her simulated rape of the plaintiff-an imitation of the paradigmatic act of male dominance.474 That the act was done by a woman to a woman, or that she had done the same thing to a man, does not change the social meaning of rape as male dominance. From the sexual- domination perspective, the fixation with desire has led courts to dismiss cases in which a harasser was motivated by disgust or aggression, allowing sexual abuse in the workplace to proceed unchecked.
What would sexual harassment doctrine look like, from this perspective, if the desire-based presumption were abandoned? Some might argue that the best solution would be to move to a "sex per se"
rule that counts any unwanted sexual conduct or expression as
"because of sex."475 "Sex" here means erotic. Ten states have enacted
reflection of the extent to which sexuality is used to penalize women"); David S. Schwartz, When Is Sex Because of Sex? The Causation Problem in Sexual Harassment Law, 150 U. PA. L.
REV. 1697, 1728 (2002) (arguing for a revival of the "sex per se" rule, primarily for practical, rule-of-law reasons). Although MacKinnon has criticized hierarchical forms of sexual expression in the pornography context, she has not argued that sexual harassment law should prohibit all hierarchical sexual expression at work. See Robin West, Law's Nobility, 17 YALE J.L. & FEMINISM 385, 437-38 & n.173 (2005) ("MacKinnon has never argued (that I can find, and I have looked) that sexual harassment law should target hierarchic sex.").
471. Spindelman, supra note 7, at 212.
472. This charge resonates with the claim that MacKinnon has said all sex is rape. See Catharine A. MacKinnon, Pornography Left and Right, 30 HARV. C.R.-C.L. L. REV. 143, 143 (1995) (book review) (denying the claim).
473. See Louise F. Fitzgerald, Who Says? Legal and Psychological Constructions of Women's Resistance to Sexual Harassment, in DIRECIIONS IN SEXUAL HARASSMENT LAW, supra note 7, at 94, 94; West, supra note 470, at 388-89.
474. See supra notes 274-90 and accompanying text.
475. See, e.g., Schwartz, supra note 470, at 1702; see also Meredith Render, Misogyny, Androgyny, and Sexual Harassment: Sex Discrimination in a Gender-Deconstructed World, 29 HARV. J.L. & GENDER 99,148 (2006).
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Although a sex per se rule would be less problematic than rules that turn on desire or orientation explicitly, it is not without disadvantages. A sex per se rule still requires courts to determine whether conduct is erotic or merely social, a question they are likely to answer by reference to normative notions of sexual orientation and desire, with the same disparate results they are reaching now.477 Even in states that define sexual harassment to mean conduct of a "sexual nature," some courts have muddled the inquiry with the question of whether the harassment is motivated by desire.478
Another problem with these state laws is that nonsexual (meaning not erotic) harassment directed at one sex may not be cognizable as sex discrimination. For example, imagine a woman is constantly undermined and excluded from important meetings, trainings, and mentoring opportunities because she is a woman.
Courts may not see nonsexual bullying of women thought to have
"taken men's jobs" as discrimination.479 Even if state courts are willing to consider nonsexual forms of harassment, they may regard them as not severe or pervasive, as compared to sexual conduct.48 From the
476. See, e.g., CONN. GEN. STAT. ANN. § 46A-60(8) (West 2009); 775 ILL. COMP. STAT. ANN.
5/2-101(E) (West 2011); MASS. ANN. LAWS. ch. 151B, § 1(18) (LexisNexis 2008); MICH. COMP.
LAWS ANN. § 37.2103(i) (West 2001); MINN. STAT. ANN. § 363A.03(43) (West 2012); N.D. CENT.
CODE ANN. § 14-02.4-02(6) (West 2009); N.H. REV. STAT. ANN. § 354-A:7(V) (LexisNexis 2008); R.I. GEN. LAWS § 28-51-1(B) (2003); VT. STAT. ANN. tit. 21, § 495D(13) (2009); WiSc.
STAT. ANN. § 111.32(13) (West 2002); see also P.R. LAWS ANN. tit. 29, § 155B (2009); V.I. CODE ANN. tit. 10, § 64a(b)(4) (Supp. 2013). Some of these statutes may be interpreted to also require a plaintiff to show the harassment was "because of sex" as per Oncale. See Robinson v. Ford Motor Co., 744 N.W.2d 363, 367-70 (Mich. Ct. App. 2007) ("[P]laintiff must nonetheless show that he was subjected to a sexually hostile workplace 'because of sex."'). But see Cummings v.
Koehnen, 568 N.W.2d 418, 422 (Minn. 1997) ("[I]t is not necessary for a sexual harassment plaintiff to prove that the harassment occurred 'because of sex,' in addition to proving the elements of sexual harassment. . . .").
477. Cf Schultz, supra note 22, at 1744-47 (describing courts' difficulty in determining whether particular actions or words constituted conduct of a sexual nature).
478. See Kalich v. AT&T Mobility, 679 F.3d 464, 472 (6th Cir. 2012) (discussing Barbour v.
Dep't of Soc. Servs., 497 N.W.2d 216, 218 (Mich. Ct. App. 1993) (per curiam)).
479. See Haynie v. State, 664 N.W.2d 129, 135 (Mich. 2003) (holding that, under Michigan law, "gender-based harassment" is not "sexual harassment" unless it took the form of
"'unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature"' (quoting MICH. COMP. LAWS ANN. § 37.2103(i)). But see LaMont v. Indep. Sch. Dist. No. 728, 814 N.W. 2d 14, 19-21 (Minn. 2012) (rejecting the argument that Minnesota's statute limits sexual harassment claims to those alleging "conduct or communication of a sexual nature").
480. See LaMont, 814 N.W. 2d at 22.
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sexual-domination perspective, this is deeply troubling, as it contributes to women's subordination to men."
Apart from these concerns, the primary problem with a broad sex per se rule that would cover verbal and physical harassment is that the Supreme Court has rejected it. As Justice Scalia wrote in Oncale, "We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.",482
The Supreme Court has not, however, ruled out a presumption that physical conduct of a sexual nature is "because of sex." The Department of Education has interpreted Title IX, an analogue to Title VII in the education context, to forbid "acts of sexual violence"
as "a form of sex discrimination" by definition.483 In the Title VII context, some courts already recognize unwelcome sexual touching as per se discrimination, regardless of whether it is part of a sexual advance.48 Courts might also recognize sexual extortion in the form of quid pro quo harassment as per se discrimination, regardless of the desires or ostensible orientations of harassers.45 Threats of sexual assault might qualify as well. Courts might reason that these are paradigmatic forms of masculine domination-even when wielded by women, or against men. There may be room for interpretation when it comes to the meaning of "sexual touching," but doctrines that specify what types of touching are sexual (for example, intentional
481. This is even more troubling from the gender-disadvantage perspective. See Schultz, supra note 22, at 1687. Another problem is that a sex per se rule would create additional incentives for employers to ban welcome and consensual relationships on the job, creating a desexualized, sanitized, and ultimately dehumanized workplace in the service of an alienating form of managerial efficiency. Schultz, supra note 445, at 2087. Most sexual-domination theorists do not go so far as to take issue with welcome and consensual sex. See supra note 473.
482. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (emphasis added).
483. Dear Colleague Letter from Russlynn Ali, Assistant Sec'y for Civil Rights, Office for Civil Rights, U.S. Dep't of Educ. 1 (Apr. 4, 2011), available at http://www2.ed.gov/about/offices/
list/ocr/letters/colleague-201104.pdf (defining "sexual violence" as "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent"). Title IX of the Education Amendments of 1972, Pub. L. No. 92-318, § 901, 86 Stat. 235, 373 (1972) (current version at 20 U.S.C. § 1681(a) (2012)), provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
484. See supra note 43 and accompanying text.
485. See, e.g., Dear Colleague Letter from Russlynn Ali, supra note 483, at 1-2 (defining discrimination "on the basis of sex" under Title IX to include "rape, sexual assault, sexual battery, and sexual coercion").
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touching of genitals or breasts) are preferable to those in which the sexual nature of a touch is determined by the harasser's orientation.486 There is also room for homophobic interpretation when it comes to whether a harasser is engaged in quid pro quo harassment: explicitly or implicitly conditioning a professional opportunity on sex. But making the harasser's purported sexual orientation irrelevant to this inquiry would be an improvement over the status quo.